Why did Apostrophe do it?

15 May 2002

The question many may be asking at this stage is what was the motivation for Fred Nader to initiate this act of piracy? I made contact with Nader via email, to attempt to get his side of the story. It seems reasonable to me that, knowing that an article on this matter was going to be written, he would have at least some comment. Nader asked me for a list of questions, which I explained to him I did not have and that we should proceed by having some dialogue about the issues as they arose. To start that dialogue I asked two questions: Did you complete the act you were being pursued for by the foundries? If so, why did you do it?.

Nader declined further comment.

Given the lack of feedback by Nader, I believe we will all have to form our own opinions as to his motivation. From my perspective I think his actions were driven by three things: the wish to build an online persona, to thumb his nose at authority and by a certain amount of naÃ¯vete.

The personaApostrophe first seems to have made an appearance on the internet during a period when piracy by Paul King’s Southern Software Inc was of widespread interest – Adobe and Emigre were pursuing litigation against SSI (which resulted in the ruling that fonts as software were protected by copyright – a victory not just for Adobe and Emigre, but for the entire type industry). This was also a time when the usenet group alt.binaries.fonts (which distributed font files) was created. All this was five to six years ago.

From his first appearance Apostrophe/Nader has delighted in his anonymity, this has allowed him to claim various things that could not be verified one way or the other. One of his biggest claims was to be an ‘industry insider’, someone who claimed to know the workings of the type industry and to be closely involved in type and type production. To this end he has variously claimed to have worked directly for commercial foundries, and to have worked on anything up to 600 commercial fonts. While those taking part in discussions on usenet groups like comp.fonts were dubious about such claims, no one, due to Apostrophe’s anonymity, could claim to be able to verify these things either way. Apostrophe’s standard defence when quizzed about such claims was to hide behind his anonymity, claiming that to disclose answers would reveal his identity.

Building on his online persona Nader took a stance against certain foundries, opposed copyright protection, encouraged others to upload commercial fonts to usenet and the web, and seemed to acquire the status of something of a leader in some undefined group struggling to overthrow those who were oppressing them. For the most part the typographic community took this all with a pinch of salt, Nader’s ravings could easily be debunked. However I was concerned on one occasion for my own personal safety in the face of such a person.

Nader had written various articles which appeared on usenet and on several web sites. In one of those he made several attacks against me, which I ignored – except for one statement in particular. The 1999 ATypI conference was coming up in Boston, and Nader had stated that he was coming to the event to ‘pick a fight’ with me. I am sure you can understand that I took such a threat with some degree of seriousness – given that Nader was unknown to anyone at the time, by name or sight, and that he had gained an online reputation as something of a sociopath.

In the end, after some consideration, I went to the conference. As it turned out Nader never made the journey to Boston from Toronto and was never registered as a delegate for the event.

Thumbing his noseThis area of Nader’s behaviour follows on directly from his creation of an online persona. Part of that was to attempt to undermine the rights of certain foundries, and to launch what can only be described as propaganda campaigns against various organisations, foundries and individuals. Put an organisation, a foundry and an individual together and you would really be rolling.

For what cause was the propaganda created – the greater glory of Apostrophe.

The overall aim here seems to be to raise the profile of Fred Nader via his alter ego Apostrophe. His ultimate act of defiance was the uploading of commercial fonts, directly as an affront to those he knew were watching – those who were trying to prevent their work being pirated in such blatant ways.

NaÃ¯veteWhat was it that provided the final trigger for Nader to make himself vulnerable to legal action? He’d been online, arguing the toss in news groups for three or four years, never apparently crossing the line to outright piracy while denigrating the efforts of copyright holders to protect their work.

It would appear, that to a large extent, his belief in his own anonymity made him bold enough, but, given the discussions that were happening online, there is another factor. Several people had taken the position in online forums, that copyright for fonts as software could not exist – for the most part these people were those who had a commercial interest in showing that fonts were not protectable. People like Paul King of SSI – whose defence in the face of a lawsuit from Adobe and Emigre was precisely that â€œcopyright for fonts as software did not existâ€.

In part because of this argument, and in part because of legal references that were made during online debates, those that were anti-copyright were easily persuaded by the voices of ‘reason’ put forward by the efforts of those with an interest in the failure of the Adobe v SSI suit.

The single document these lobbyists relied upon was issued by the United States Copyright Office in 1988, the official summary of which is:

The purpose of this notice is to inform the public that the Copyright Office has decided that digitised representations of typeface designs are not registrable under the Copyright Act because they do not constitute original works of authorship. The digitised representations of typefaces are neither original computer programs (as defined in 17 U.S.C. 101), nor original databases, nor any other original work of authorship. Registration will be made for original computer programs written to control the generic digitisation process, but registration will not be made for the data that merely represents an electronic depiction of a particular typeface or individual letterforms. If this master computer program includes data that fixes or depicts a particular typeface, typefont, or letterform, the registration application must disclaim copyright in that uncopyrightable data.

Pretty strong stuff, and the document goes on for 3,500 words as to why the US Copyright office had taken this stance. If one were to take the trouble to read the whole document however you would find some inconsistencies that don’t seem to add up in the way we think about fonts technically, at least this document doesn’t reflect the changes that have taken place over the last 25 years. There are two fundamental reasons for not relying on this document as having any enforcibility, which fall outside the arguments it makes – or indeed anyone may make in the pro- or anti-copyright camps.

Firstly, this document is not legislation, it is a ‘policy decision’ by the copyright office, made in order to streamline it’s administration and to inform the public as to it’s opinion about certain matters. If a case were to come to court concerning the copyright protection of fonts as software this document would carry little weight – the overriding legislation is the US Copyright Act 1976, which any US court would look to.

Secondly, and almost comically, the 1988 policy decision was made obsolete by the US Copyright Office’s 1992 policy decision, on exactly the same matter, again the document summary:

The purpose of this Final Regulation is to clarify the Copyright Office's practices regarding registration of claims to copyright in computer programs used in the generation of digitised representations of typeface designs. This regulation amends 37~CFR 202.1 to state the Office’s existing practice in this respect. Pursuant to Congress’s judgment in the 1976 Act the Copyright Office does not register claims to copyright in typeface designs as such, whether generated by a computer program, or represented in drawings, hard metal type, or any other form.

The Office does, however, register claims in original computer programs whether or not the end result or intended use of the computer program involves uncopyrightable elements or products. In the past, the Office has required a disclaimer for computer programs containing data depicting digitised representations of typeface designs. Due to changes in the industry and the administrative burden caused by correspondence, the Office will no longer require such disclaimers. Instead, in order to avoid any confusion about the scope of certificates of registration for computer programs used in the generation of digitised representations of typeface, the Office will not accept a nature of authorship statement of â€œentire workâ€, â€œentire computer programâ€, â€œentire textâ€, or the like. Only descriptions such as â€œcomputer programâ€ should be used. The scope of the copyright will be, as in the past, a matter for the courts to determine.

‘Not only did the Copyright Office overturn it’s own policy decision, but that Adobe v SSI was decided by the courts in Adobe’s favour’

What neither the lobbyists, nor their naÃ¯ve followers seem to recognise – or are willing to accept (even to this day, when the 1988 document is still cited) – is that not only did the Copyright Office overturn it’s own policy decision, but that Adobe v SSI was decided by the courts in Adobe’s favour – in February 1998. Clearly even if the Copyright Office had not issued the 1992 policy decision the interpretation of legislation via the courts has precedence – as the final line of the 1992 summary states copyright is ‘a matter for the courts to determine’.

Anyone relying on the 1988 document for their reasoning would be be extremely naÃ¯ve. Apostrophe/Nader’s font uploads began in 1999, and he has based his defence and reasons for defying the law on the 1988 policy decision.

In a final twist of irony, Nader and the copyright deniers have based their arguments on the decisions of US executive offices – Nader was sued via the Canadian courts according to Canadian law.

Adobe vs SSI judgement02/02/1998
Historic judgement by the District Court of Northern California establishing protection for fonts as software in US law. Summary judgement by Judge Ronald Whyte rules in favour of Adobe against SSI